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A line between adjoining owners located
and recognized as such for 20 years
becomes a fixed boundary.
Judge's charge must be excepted to in
order to bring same up for review.
Appeal from Judgment upon a verdict
at the Circuit in favor of the Plaintiff.

Geo. M. Smith for, applt.
Abner H. Prescott for respt.

This is an action of ejectment brought to recover a small strip of land in the possession of the defendant, and involves the question of a disputed boundary between the parties in respect to two adjacent village lots in the village of Herkimer.

Held, The principle of law asserted in the charge, in this particular, is a sound and correct one; and, if it were not, no exception appears to have been taken to it by the defendant's counsel. The appeal is from the judgment, which only brings up for review the exceptions taken at the trial.

Judgment affirmed.
Opinion by E. Darwin Smith, J.

Brown resp't v. Combes et al., applts.
Decided Jan'y 18, 1876.

One who advances money on growing
crops, and afterwards receives them,
under an agreement that he shall con-
sign them for sale, is entitled to the
proceeds as against the consignees,
claimed under an older titie from
the original vendor, of which he had
no notice.


The consignees having received the crops from the consignnr, under a notice that they were to be sold for his account, are estopped from setting up that they were to be made upon any other account.

This action was brought to recover a balance due on account, for goods consigned to defendants for sale. It appeared that plaintiff agreed with one O. to make advances on his growing crops, which were to be shipped to him at S., and by him consigned to defendants and others, for sale. Plaintiff made the advances; O. received the crops and consigned them as agreed, with bills of lading in plaintiff's own name, and letters were written by him to defendants from time to time, directing them to sell on his account. Defendants offered to prove upon the trial


The case was put to the jury upon the question whether the line which the plaintiff claimed to be the true line had been practically located and recognized as the line between the parties for 20 years and upwards, and they were instructed if that were so "it put an end to the case, and an agreement between O. and them of the the plaintiff was entitled to recover accord-previous year, by which they were to ading to his occupation for 20 years.” vance money for the crops, and which

was to continue in force until a final set-
tlement was had, and all allowances paid,
and that they had made advances there-
under. Plaintiff did not know of this

Simeon E. Church, for applts.
W. W. Goodrich, for respt.

Held, That plaintiff by his advance became possessed of the crops, and was entitled to the proceeds of the sale of them; that the prior agreement with defendants did not alter plaintiff's rights, as he had no notice of it, and had full possession of the crops; that defendants could not claim the crop under an older title, as they were not sold or delivered to defendants, but shipped on behalf of plaintiff, with a notice to that effect.

Judgment of General Term affirming judgment entered on verdict directed for plaintiff, affirmed.

Opinion by Miller, J.

Held, also, That as the case appears to have been tried upon the theory that the balance claimed by plaintiff was actually due unless defendants were entitled to deduct their advances to O. of the previous year, although no proof was given that there was anything due plaintiff, defendants are concluded from raising the question here.


N. Y. COURT OF APPEALS. Murphy, plaintiff in error v. The People, defendants in error.

Decided January 18, 1876.

Upon the trial of an indictment for murder, it is competent for the prosecution to show, as bearing upon the question of motive, that deceased had attended Court several times with a party against whom the prisoner was prosecuting several suits, and the objection that parol evidence of the nature of the suits could not be given is not available on appeal.


Defendants claimed that notice of their claim was given in a letter to plaintiff in answer to a letter from him complaining of delay, which stated that plaintiff could change his consignments if he would pay the amount defendants had advanced to O. To this plaintiff replied, that as he had made the shipments in his own name, he supposed defendants could have no doubt who was entitled to the returns, and that he sent other articles for defendants to sell on his account. Defendants continued to sell the crops on plaintiff's account, which were forwarded with bills of lading in plaintiff's name.

statement made by the prisoner, shortly after the murder, and while he was in custody of the Sheriff, in response to the question, "do you desire to make any statement," is voluntary.

The plaintiff in error was convicted of the murder of one H., by the firing of a gun or pistol. The evidence was entirely circumstantial, and tended to show that the shot was fired by some one standing outside of the house in which the deceased

and one G., the prisoner's brother-in-law,

Held, That plaintiff's reply to defend

ants' letter was a direct notification to

resided, and near a window of a room in

them that the sales were made for plain-which they were sitting. Upon the trial tiff, and they are estopped now from claiming that they were made upon any other account.

G. was produced as a witness for the people, and testified, among other things, that he was the defendant in three suits commenced by the prisoner against him and others, and had been several times to attend the trial of them, and that H., the deceased, had accompanied him, and that the suits were brought to set aside deeds from his wife to him. It appeared that the witness' wife was dead, and that the suits were to be tried on the Monday after the murder. This evidence was objected

Seth B. Cole for defendants in error.

to generally by the prisoner's counsel, and conversation between the officer and the the objection was overruled. prisoner, when he made his statement, the James Emott and H. Daily, Jr., for prisoner was asked "where did that mask plaintiff in error. come from," and replied, "the children. got that from the ragamuffins," and immediately added, as if recollecting himself, that mask had a black nose and was torn down the face." The prisoner's counsel moved to have this testimony stricken out, "as not having been connected with the prisoner," and the motion was denied. The fact that a mask had been found had not been communicated to the prisoner when the conversation occurred.

Held, no error; that the evidence was competent as bearing upon the question of motive; that it was always competent upon such a trial to show the relations between the prisoner and the persons against whom the murderous act was directed; that the objection having been made generally, the objection that parol evidence could not be given of the suits, and that the pleadings should have been produced, is not available on appeal; that the objection should have been specifically made upon the trial. 17 Wend, 257; N. Y., 243; 12 id., 442; 32 id. 440; 45 id., 753; 50 id. 392.


The prosecution proved that the prisoner, when brought to the Sheriff's office, on the day after the murder, was asked if he desired to make any statement of his "whereabouts on Sunday and Saturday," and upon being informed that if he desired to do so the statement would be reduced to writing for him, and the prisoner replied that he did, and then proceeded, without any further request, to make a statement. This statement was offered in evidence and received under objection by the prisoner that it was not voluntary.

Held, no error; that the statement was not to be so considered simply because made after the prisoners' arrest to the officer who had arrested him, and while in his actual custody. 15 N. Y., 9; 37 id., 303 10 id. 13; 15id., 384; 41 id., 9. It was for the jury to determine the weight to be given to the statement, taking into consideration the circumstances under which it was made. Evidence was received under objection which showed that after the murder, and on the same evening, a mark was found under the window where the shot was fired, and that during the

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coupon bonds of one thousand dollars each, payable to a party named or bearer, were executed and delivered to that party. They became the property of the First National Bank of Topeka. That bank put them upon the market and disposed of them. Eighteen of them were sold to the plaintiffs in error

for the sum of $12,852, and the residue to another party. There was default in the payment of interest. The other party brought suit. This court held that the Legislature had no power to pass the acts, and that the bonds were, therefore, void. (Loan Association v. Topeka, 20 Wall. 655.) This suit was brought by the plaintiffs in error to recover from the receiver the amount paid to the bank for the eighteen bonds, with interest upon that sum. The ground relied upon is failure of consideration. The good faith of the bank was con- The only consideration given, or proceded, as also that there was no warranty. fessed to be given, by Neblett for the conHeld, The plaintiffs in error got ex-veyance was the cancellation of a certain actly what they intended to buy, and did bond for the sum of $14,464.51, executed buy. They took no guaranty. They are by Macfarland to Sterling Neblett, the seeking to recover, as it were, upon one, father, and alleged to be the property of while none exists. They are not clothed Henry Neblett. with the rights which such a stipulation would have given them. Not having taken it, they cannot have the benefit of it. The bank cannot be charged with a liability which it did not assume.

Such securities throng the channels of commerce, which they are made to seek, and where they find their market. They pass from hand to hand like bank notes

The seller is liable ex delicto for bad faith,

and ex contractu there is an implied warranty on his part that they belong to him, and that they are not forgeries.

It would be unreasonably harsh to hold all those through whose hands such instruments may have passed liable according to the principles which the plaintiffs in error insist shall be applied in this case. (Lambert v. Heath, 15 Meeson & W. 486.)

Judgment affirmed.

Opinion by Swayne, J.


Decided October Term, 1875.


setting aside a conveyance procured by fraud, equity will allow the purchaser to receive back only the iden tical property by which he effected the bargain, whether it has greatly depreciated in value or not; and even if it has become worthless.

This action was brought to set aside the conveyance of a plantation in Louisiana, made by Macfarland to the appellant Neblett, upon the allegation that the conveyance was obtained by the fraudulent acts and representations of Neblett and his father.

The Court below adjudged the transaction to be fraudulent, directed the execution of a deed reconveying the property, and ordered the return and re-delivery of the bond for $14,464.51. unaffected by any endorsement of credit or payment thereon, and the same, with the mortgage made for its security, to retain the same lien thereon and the same force and effect

as if the deed had not been made or any cancellation of the bond taken place.

It was claimed that, instead of directing a return of the bond in specie, as a condition for the return of the land, the court should have directed the payment of the amount of the money secured thereby.

Held, 1. In cases of this character the general principle is that he who seeks equity must do equity; that the party against whom relief is sought shall be remitted to the position he occupied before the transaction complained of. The court

proceeds on the principle that as the tran- supra, it is said: "The party defendant saction ought never to have taken place, is not bound to rescind until the lapse of a reasonable time after discovering the fraud. Hence the parties cannot be placed in statu quo as to time." Judgment affirmed. Opinion by Hunt, J.

the parties are to be placed as far as possible in the situation in which they would have stood if there had never been any such transaction.

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But this principle will not benefit the complaining party in this suit.

He is restored here to his property that he had and parted with when he received his deed, to wit, his bond and mortgage. If he had paid $14,500 in money and received in return only a bond for the like amount, of doubtful security and impaired by the lapse of time, he might well have com-A plained. But he paid no money.

Whether good or bad, he receives now the same security that he gave to his vendor. It would be a perversion of justice to give him the full amount in money for a security then worth but fifty cents on the dollar. If, on the other hand, it was then an adequate security, it is the

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Continental Life Insurance Co. v. Ben-
jamin H. Palmer and others.
Decided February 1875.

wife insured the life of her husband,
the amount payable to herself if liv-
ing, if not, to their children. She
died before her husband, and one of
the children before him, leaving a

Held, that a transmissible interest vested in the children upon the issuing of the policy, and that the child of the deceased child took by descent the interest of its parent, and was entitled to the portion of the fund which the parent would have received if living.

Plaintiffs brought bill of interpleader against certain parties claiming interest adversely to each other, in the amount of a life insurance policy payable by petitioners. It was found upon the petition and answer that Betsy A. Palmer insured the life of her husband, Benjamin W. Palmer, in the sum of $3,000, payable to herself, if living, if not, to their children. She died before her husband. Amos F. Palmer, one of the children, also died during the life of his father, leaving issue, Charles P. Palmer, one of the respondents.

We have no means of knowing whether there can be a defence made to the bond, arising from the statute of limitations. But of this the appellant must take his chance. If the bond has become thus impaired it is no worse than the loss of a perishable The question here being whether Chas. article, or a forfeiture of shares during the P. Palmer takes an interest in the policy, litigation. These circumstances do not or whether the whole sum insured vests in alter the rule of law. In Gatley v. Newell, the surviving children.

That on death of Benjamin W. Palmer there was due and payable on policy the sum of $2,826.79 cents, which petitioners were ready and willing to pay to the persons entitled to receive same.

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